Commomwealth v. Farmion R. Williams.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-373

COMMOMWEALTH

vs.

FARMION R. WILLIAMS. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a judge of the

Superior Court revoking his probation. He asserts that the

judge erred by declining to apply the exclusionary rule to

evidence presented at the probation violation hearing and abused

his discretion by (1) denying the defendant's request to recall

a witness, and (2) finding the defendant in violation of

probation without sufficient evidence to prove that he committed

criminal offenses while on probation. 2 We affirm.

Background. In 2012 the defendant pleaded guilty to

carrying a firearm without a valid license and possessing

ammunition without a firearm identification card, having

1 Also known as Reginald Williams.
2 The judge also found that the defendant violated noncriminal
conditions of his probation.
previously been convicted of three violent crimes or serious

drug offenses. 3 He was sentenced to seven to ten years in State

prison, with five years of probation to be served after his

release. The defendant began his probation in September 2016.

In November 2019, the defendant was arrested and charged with

new offenses, including carrying a firearm without a valid

license and the unlawful possession of a loaded firearm, large

capacity firearm, and ammunition.

Prior to his probation violation hearing, the defendant

filed a motion to apply the exclusionary rule at the probation

violation proceeding to the evidence seized in conjunction with

the searches underlying the new criminal charges, as well as a

motion to suppress that evidence. On February 5, 2021, a judge

heard testimony from a probation officer and two police

officers. The defendant sought to call another police officer

who was unavailable that day, so the hearing was continued to

March 12, 2021, for the officer's testimony.

The defendant failed to appear for the March 12 hearing and

a default warrant was issued. Over seven months later, on

October 27, 2021, the defendant was arrested on the warrant. On

November 4, 2021, the matter came before a different judge. The

3 The plea occurred after the defendant's motion for new trial
was allowed on his conviction of a 2005 multi-count indictment
for which he originally was sentenced to concurrent State prison
terms of fifteen years to fifteen years and one day.

2
defendant requested that the hearing be started "from scratch."

In particular, he pointed to "a real issue with credibility" in

the testimony of one of the police officers who testified on the

first day of the hearing. After taking the matter under

advisement, the second judge listened to recordings and reviewed

transcripts of the prior hearing. On November 15, 2021, the

second judge denied the defendant's request to recall the

witnesses. He reasoned that the issues to be resolved at the

hearing were relatively simple, the witnesses had already

testified at length and been cross-examined in the defendant's

presence, and the defendant forfeited his right to recall the

witnesses when he did not appear in court on the second hearing

date. On December 1, 2021, after hearing from the defendant's

final witness, the second judge found the defendant in violation

of probation.

Discussion. 1. Application of the exclusionary rule. 4

"[T]he exclusionary rule does not generally apply to probation

violation proceedings." Commonwealth v. Rainey, 491 Mass. 632,

637 (2023), citing Commonwealth v. Olsen, 405 Mass. 491, 494

(1989). 5 The defendant argues that Olsen, supra, requires

4 Although the parties agreed that the defendant's motion to
suppress evidence would be heard simultaneously with the
probation violation hearing, the second judge did not explicitly
rule on the motion to suppress.
5 The defendant filed a letter pursuant to Mass. R. A. P. 16 (l),

as appearing in 481 Mass. 1628 (2019), directing us to a case

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exclusion of evidence from a probation violation hearing when

officers "specifically direct[] unlawful conduct at a

probationer knowing that they are subject to probation

supervision." He asserts that the second judge should have

concluded that investigating officers knew of the defendant's

probationary status in November 2019 and "specifically targeted

him for a surveillance operation and multiple searches." We

disagree.

In Olsen, 405 Mass. at 496, the Supreme Judicial Court left

open the question whether evidence should be excluded at a

probation violation hearing where it was "the product of police

harassment or the result of a police focus to obtain evidence

specifically for a probation revocation hearing." Commonwealth

v. Simon, 57 Mass. App. Ct. 80, 90 (2003). To the defendant's

benefit, the judge applied this framework when he analyzed the

defendant's motion to apply the exclusionary rule to the

violation proceeding. Here, there was evidence that (1) the

arresting officers had been involved in an unrelated arrest of

pending in the Supreme Judicial Court in which that court has
solicited amicus briefs on an issue related to Olsen. See
Commonwealth v. Gelin, SJC-13433. We have reviewed the
appellant's brief in Gelin, which argues for the ability to
raise a Fourteenth Amendment equal protection claim to suppress
the results of a racially-motivated search at a probation
violation hearing. The defendant has not argued, here or in the
trial court, that the search was racially motivated. Nor has
the defendant moved to stay this appeal pending the outcome of
Gelin.

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the defendant in January 2019; (2) the defendant had filed an

internal affairs complaint against one of the officers who

testified at the first part of the violation hearing, as well as

other members of that officer's investigative unit, in August

2019; (3) investigating officers knew that the defendant had a

criminal record that included illegal drug and firearm

convictions; and (4) officers checked the defendant's board of

probation record before conducting the surveillance that

resulted in the arrest at issue. 6 On this record, we discern no

error in the judge's determination that "notwithstanding the

fact that there was an Internal Affairs complaint filed against

[one of the police witnesses] by the defendant[,] [t]here's no

indication . . . that there was any harassment of [the

defendant] with respect to this particular stop or that the stop

was solely because they knew that he was on probation." 7

6 Although the defendant's counsel did not ask either of the
officers who testified at the first part of the hearing whether
they knew that the defendant was on probation, the defendant
argues from the police testimony about checking his criminal
record that the record "overwhelmingly supports" that
investigating officers knew he was on probation before
surveilling him. A review of his board of probation record
makes this less than clear based on the various entries relating
to his motion for new trial and resentencing.
7 Because we agree with the second judge that the exclusionary

rule does not apply in these circumstances, we need not reach
the issue whether the search was in fact unlawful, which, on the
record before us, does not necessarily appear to be the case.

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2. The defendant's request to recall witnesses. "The

manner and order of the presentation of evidence and the

interrogation of witnesses is entrusted to the sound discretion

of the [hearing] judge." Commonwealth v. Forte, 469 Mass. 469,

488 (2014). The defendant contends that the second judge

violated his due process rights and committed an abuse of

discretion by denying him the opportunity to present live

witnesses without conducting the analysis required under

Commonwealth v. Costa, 490 Mass. 118, 127-128 (2022), and

Commonwealth v. Hartfield, 474 Mass. 474, 480-481 (2016).

Again, we disagree.

To begin, the cases cited by the defendant in support of

this argument are inapposite, because the witnesses here did

testify in person. Although some of the witnesses testified

before a different judge, their testimony was part of the same

hearing, and the defendant had a full opportunity to question

them. Thus, "[h]e was . . . not denied his constitutional right

to confront the witnesses against him, or the opportunity to

challenge the witnesses' credibility and the truth or accuracy

of their testimony." Forte, 469 Mass. at 488.

Nor do we think it unreasonable for the second judge to

find that the defendant waived his right to recall witnesses

after he failed to appear for the second day of hearing without

explanation. The defendant was present when the date for

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continuation of hearing was announced, but he did not return to

court until he was arrested on the warrant. Even had the

defendant not forfeited his right to recall witnesses, we

discern no abuse of discretion in the second judge's ruling.

See Commonwealth v. Hicks, 375 Mass. 274, 276 (1978) (within

judge's discretion to determine "[w]hether or not a witness

should be recalled in a criminal case"). Beyond simply finding

waiver, the judge explored the reasons the defendant sought to

recall witnesses. The defendant focused on witness credibility

and particularly cited the internal affairs complaint he filed

against one of the police witnesses. Yet, he acknowledged that

he had already cross-examined the witnesses on those subjects.

See Forte, 469 Mass. at 488 (recall of witnesses appropriate if

defendant would otherwise be unreasonably deprived of

opportunity to present newly discovered information material to

defense). The second judge read the transcript of the

witnesses' testimony before the first judge and listened to the

audio recording of the testimony.

3. Sufficiency of the evidence. "The Commonwealth must

prove a violation of probation by a preponderance of the

evidence." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014).

"A determination whether a violation of probation has occurred

lies within the discretion of the hearing judge." Id. at 519-

520. The defendant contends that the second judge abused his

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discretion because there was insufficient evidence to support a

finding that the defendant constructively possessed the firearm

recovered from his vehicle or had knowledge that the firearm

contained ammunition or had a large capacity feeding device. We

disagree.

"To establish constructive possession, the Commonwealth

must prove a defendant's (a) knowledge of the contraband; (b)

ability to control it; and (c) intention to exercise control

over it." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444

(2013). Here, officers testified that they saw the defendant

approach a vehicle and remotely unlock it. He then opened the

front passenger door and leaned into the passenger compartment

for several minutes. When police subsequently searched the

vehicle, they saw the butt of a firearm sticking up from between

the front passenger seat and the middle console. The defendant

was the vehicle's registered owner, and there was no evidence

that anyone else went near the vehicle from the time the

defendant entered it until the police searched it. This

evidence was sufficient for the judge to find by a preponderance

of the evidence that the defendant constructively possessed the

firearm and knew both that it was loaded and that it contained a

high capacity feeding device. See Commonwealth v. Clark, 446

Mass. 620, 624 (2006) (evidence sufficed to prove constructive

possession in criminal prosecution where contraband found in

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center console and defendant had control of vehicle);

Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 848 n.12 (2010)

(evidence sufficed to prove constructive possession at probation

revocation proceeding where gun found under defendant's car seat

and defendant exhibited consciousness of guilt).

Order revoking probation
affirmed.

By the Court (Massing,
Grant & Brennan, JJ. 8),

Clerk

Entered: October 13, 2023.

8 The panelists are listed in order of seniority.

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